The
legislation of 'American Competitiveness in
the Twenty-First Century Act' (AC-21)
has relieved foreign professionals from tremendous pains by allowing
better utilization of mandated employment-based immigrant visa numbers, mobility
of the professionals pending the Green Card process, and extended permit to stay
and work pending the Green Card process. However, this legislation failed to
remove the problem of the backlogs. The legislation will be truly effective
only if the Congress acts on "funding" either by increasing budget or
passing legislations that make the adjudication systems self-sufficient through
the charge of user-fees.
The
new legislation will add tremendous workloads and pressures on the Bureau of Citizenship and Immigration Services
(USCIS) and
aggravate backlogs in the future, unless it is backed up by a legislation
allowing more funds so that the DOL, DOS, USCIS can accelerate process, increase
adjudicators, and expand the facilities.
1.
Impact
on New H-1B Candidates and Employers
It
gives "unlimited"
number of H-1B visas for the professional jobs in colleges and their affiliate
and related organizations, nonprofit or governmental research organizations. It
also gives "unlimited" number of H-1B visas for foreign physicians who
are willing to contribute in such medical shortage areas as the urban cores and
remote rural areas.
These
numbers are estimated to exceed 100,000. They are indeed big winners in this
legislation. These organizations have already been enjoying the benefit of lower
prevailing wage rate determination, or separate
National Interest Waiver process. It should help these mostly non-profit
community of the society to survive against the severe competition for brains by
the private industries.
2.
Impact
on H-1B Professionals Who is Already in H-1B Status
The
law will allow you to join a new employer "upon filing" of a new
H-1B petition. However, the drawback of using this new opportunity is that
once the new petition is denied, you lose a legal status. Options are to
file "concurrent" employment petition if that is available, and if
the employer is a small firm with potential issues of speculative
employment, etc., you are better off waiting until the petition is approved.
3.
Impact
on H-1B Professional Who Are Stuck in Labor Certification Process and Face
H-1B 6-year Limit
All the
relief provided in the new legislation are available to only those whose
case have either reached I-140 stage or I-485 stage. Therefore,
unfortunately the big losers are those who are stuck at the stage of labor
certification application and face the H-1B 6-year limit.
Most troublesome
are the regular labor certification application waiters who cannot get the
benefit of extension of H-1B status beyond 6 years, no matter whether the
case is older than 365 days or not. Both I-140 waiters and
I-485 waiters whose priority date is 365 days or older can apply for extension of H-1B status "indefinitely"
until his/her I-485 application is decided by the USCIS.
The people in this
group who are stuck at the labor certification stage will not be eligible
for such extension since no I-140 or I-485 will be pending, no matter
whether their priority date is older than 365 days or not. In fact,
maintaining H-1B status can give additional benefits for some people. Single
person can marry and bring the spouse and child on H-4 while they wait for
either I-140 approval or I-485 approval.
4.
Impact
on H-1B Professionals Who have filed I-140 and are Waiting for I-140
Approval
These people are
one of the big winners of this legislation if their
priority date is older than 365 days or longer, the H-1B six year limit is
no longer a problem as they can extend H-1B status indefinitely (one year in
increment) until they file I-485 and get decision of I-485 applications.
It is a big benefit in that even before one file I-485 or while they wait
for visa numbers, they can still stay and work on H-1B. However, not all
I-140 waiters are winners. Those I-140 waiters whose priority date is less
than 365 days old are not eligible for such extension of H-1B. Thus, if
he/she faces six-year limit of H-1B and does not get I-140 approval or
alternatively reaches 365 days from the date of labor certification
application filing, these people will face the same problem with those who
are stuck at labor certification stage and face 6-year H-1B limit.
5.
Impact
on People Who have reached I-485 Stage and Waiting for 485 Approval
These
people are real winners. If their priority date is older than 365 days, they
can indefinitely extend H-1B status so that they enjoy the benefit of H-1B
status. Additionally, they
always have an option of using EAD and Advance Parole, even though in such
case they cannot enjoy the benefit of H-1B status.
Most important benefit of
this group is that if they have waited for 180 days or over after
filing I-485 and their cases have yet to be decided by the USCIS, they can seek
a new job if the new job is the "same or similar"
occupation classification. This benefit is not available to I-140 waiters or
Labor Certification waiters. Additionally, even I-485 waiters cannot get this
benefit "unless I-485 is pending 180 days or longer." The benefits
of this legislation is immense for this group:
(1) Take a new job without
losing priority date and without losing pending I-485.
(2) Probably, angry
employer's withdrawal of the I-140 petition or labor certification after the
180 days may not affect their I-485 application. Current withdrawal and
revocation of I-140 by angry employer can affect I-485 waiters: it kills
pending I-485, and transfer of priority date to another petition is
unavailable.
(3) Petitioned job needs no longer to continue to exist after
the 180 days if the alien takes another same or similar job. This
has been a major nightmare for I-485 waiters. Employer going bankrupt or
laying off people will be no issue if it happens after the critical
180 days and the I-485 waiter find a same or similar job somewhere.
(4)
After taking a new job, no amended I-140 petition may be
necessary.
(5) For this group, corporate change by merger or acquisition or
any takeover or buyout with "no" successor-in-interest nature will
have no affect on the validity of pending I-485.
(6) Conglomerate employer
will have convenience of transferring around this group of people between its
subsidiary or affiliate corporations without affecting the pending I-485. All these benefits may be available only if I-485 is pending
more than 180 days "and" a new job is "the same or similar
occupational classification!"
The
"same or similar occupation classification"
is a very loaded language which raises a host of questions, including location of new job, salary level, issue of continuous
employment without interruption, and permanent employment, etc.
6.
Special
Rule for Universities and Research Organizations
Employees
of higher education institutions, nonprofit research organization and government
research organizations are not to be counted toward the H-1B cap.
J-1
physicians who are beneficiaries of waiver of the two-year home
residence requirement who change status to H-1B may be granted such a change
without regard to the cap, and are not counted toward the cap. Unlike
employees of higher educational institutions, these non-immigrants are not
later counted toward the cap, even if they later change employers or
occupations.
H-1B
non-immigrants that leave one of these employers to work for an employer not
exempt from the cap will be counted toward the cap in the year in which they
change jobs.
H-1B
non-immigrants who have already been counted toward a cap in the six years
prior to the filing of a new petition, are not to be counted again unless
they are eligible for a full six years of authorized admission under Section
214(g)(4) at the time of filing.
Higher
Education Associations estimate their H-1B usage is between 6,000 and 10,000 visas each year, so their exemption from the cap will free up
that many visas. The counting rule will overrule current USCIS practice of
counting H-1B non-immigrants against the cap if they are outside of the
United States at the time of filing, regardless of whether or not they had
held H-1B status prior to their departure. It will also require USCIS to
develop a method to ensure that multiple petitions on behalf of an
individual do not result in multiple visas being counted against the cap.
7. Per
Country Ceiling for EB Immigrants
In
a calendar quarter, if there are more visas available in all the employment-based
preferences than the number of qualified immigrants who may be issued such
visas, then the visas may be made available without regard to country of origin
or the per-country ceilings.
H-1B
non-immigrants reaching the six-year limit on their stay who are the
beneficiaries of pending or approved I-140s and who are subject to the
per-country limits may receive extensions of H-1B status until decisions are
reached on their adjustment of status applications.
This provision helps nationals of India and China who are
over subscribed in the employment-based first, second or third preferences, allowing unused visas to
“spill over” to them, most likely making their priority dates current. If
all “unused” visas are used in this manner before the last quarter of the
fiscal year, there may be cut-off dates established. Allows individuals in H-1B
status who are running out of time in that status while waiting for their
priority date to become current, to obtain an extension of H-1B status until
they can file for their adjustment of status and their case is adjudicated.
8.
Recovery
of Visas Used Fraudulently
If
the USCIS revokes an H-1B petition because of fraud or willful misrepresentation,
the H-1B number for that petition shall be added to the cap in the year in which
the petition is revoked, regardless of when the petition was originally
approved.
USCIS
previously had not restored revocations to the cap unless they occurred in the
same fiscal year as when the petition was originally approved. This provision
will mandate that the USCIS change that practice.
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